Six days later, the trial court
conducted a sentencing hearing. At that hearing, the state requested that
restitution be imposed on defendant in the amount of $3,000, because
"[t]he testimony of [the security officer] was that [the rows of seating] were
worth at least $1,500 apiece and that two of them were not recovered from the
original theft." Defendant objected:

"I'll move on to the restitution issue, and
then I'd be glad to answer any questions the Court has for me. We will
stipulate that [defendant], as a result of this conviction, is going to have to
pay some restitution, but I think that it would be more proper to do as the
statute allows and have the--I've never seen a restitution request from the
victims in this case, I've seen no supporting documentation, other than a
catalogue showing snapshots of similar seating, and I would like to see a
standard restitution request, leave the matter of restitution open for thirty
days, allow the state to produce a restitution request signed by the victim,
and for me to see the supporting documentation that's offered because I
disagree with the value of these seats, and I don't think that the testimony at
trial was sufficient to affix a $3,000 value on the seats."

The state replied that the jury found that the value of the
stolen seats was worth over $1,000 and that defendant did not produce any evidence
"that cast aspersions [on the security officer's] testimony, either at the
time of trial or at the time of the sentencing" regarding the value of the
stolen stadium seats. The state reasoned that, because defendant did not
create an evidentiary question concerning the value of the seats, the trial
court could order restitution based on the trial testimony.

The trial court concluded that
restitution in the amount of $3,000 on the two counts of conviction was
established by the testimony of the security officer at trial. Defendant then asked
the trial court if defendant could arrange a payment schedule with his
probation officer on the restitution award, and the trial court answered,
"Yes." Before concluding the hearing, the trial court asked
defendant, "Anything further?" Defendant replied, "Nothing from
the defense." This appeal followed.

On appeal, defendant argues that the
state's request for restitution, based solely on the security officer's
testimony at trial, did not satisfy the statutory requirements provided at ORS
137.106(1), which provides, in part:

"When a person is convicted of a crime * *
* that has resulted in economic damages, the district attorney shall
investigate and present to the court, prior to the time of sentencing, evidence
of the nature and amount of the damages. * * *"

At oral argument, defendant further argued that the
sentencing hearing did not satisfy the statutory requirements of ORS
137.106(5); defendant construes that statute to "require[] that defendant
be allowed to at least be heard either at the time of sentencing or at the time
that the court decides restitution." ORS 137.106(5) provides:

"If the defendant objects to the
imposition, amount or distribution of the restitution, the court shall allow
the defendant to be heard on such issue at the time of sentencing or at the
time the court determines the amount of restitution."

The state counters that the prosecution presented evidence in
support of the restitution award at trial and that defendant had an opportunity
to be heard at that time. Accordingly, the state argues that the trial court
did not err in ordering restitution. We agree with the state that the trial
court did not err, although for substantially different reasons.

We review sentencing decisions,
including restitution orders, for errors of law. State v. Ferrara, 218
Or App 57, 67-68, 178 P3d 250, rev den, 344 Or 539 (2008). We begin
with whether the state's request for restitution, based solely on the evidence
presented at trial, satisfies the requirements of ORS 137.106(1), which requires
the state to "investigate and present to the court, prior to the time of
sentencing, evidence of the nature and amount of the damages." Here, the
state presented that evidence during the guilt phase of the trial. Defendant
does not argue that the trial court could not consider that evidence for
purposes of restitution. Defendant argues only that the testimony at trial is
insufficient, under ORS 137.106(1), to establish that the state conducted an
"investigation" and presented "evidence" of the nature and
amount of the damages.

However, the plain text of ORS
137.106(1) does not impose an obligation on the state to prove that it
conducted a separate investigation of the nature and amount of damages
apart from the investigation of the crime itself after defendant was
convicted. In addition, the statutory text does not specify that the evidence
from that investigation be presented in any particular form. The statutory
text requires only that the state must conduct an investigation and present
evidence from that investigation "prior to the time of sentencing."
The state fulfilled its obligations under ORS 137.106(1).

We next turn to whether the trial
court improperly denied defendant the opportunity to be heard at the time of
sentencing as required by ORS 137.106(5). We have interpreted ORS 137.106(5)
to entitle a defendant to a hearing. State v. Zaragoza, 220 Or App 526,
530, 188 P3d 308 (2008) (citing State v. Hval, 174 Or App 164, 174, 25
P3d 958, rev den, 332 Or 559 (2001)). In Zaragoza, the state
requested restitution by offering the trial court a slip of paper that
contained an amount of the victim's economic damages. The trial court then
stated that it was going to enter a judgment including restitution in that
amount. The defense counsel and the court engaged in the following colloquy:

"[DEFENSE COUNSEL]: Judge, I would object
to that--

"[THE COURT]: You can.

"[DEFENSE COUNSEL]: --and ask for a
hearing.

"[THE COURT]: No. He is gonna--he is
going--it's a judgment and he--over [t]his period of time he can pay it, he
might be able to pay it in the next three years if he actually gets a job. * *
*

"[DEFENDANT]: Can you repeat how much that
was, Your Honor?

"[THE COURT]: Say again.

"[DEFENDANT]: Can you repeat how much that
was?

"[THE COURT]: You'll get a piece of paper,
but it's--all together, between what the legislature requires and this
judgment, you're looking at about eight thousand dollars."

220 Or App at 528-29 (alterations and omission in original).
Under those circumstances, we concluded that, when the trial court overruled
the defendant's objection, the court "immediately indicat[ed] that it had
made up its mind and that restitution would be imposed * * * without providing
an opportunity for [the] defendant to be heard." Id. at 530.
Based on that record, we held that, because the defendant was denied the
opportunity to be heard, the sentencing hearing did not satisfy the
requirements of ORS 137.106(5). Id.

The facts of this case are
substantially different than those in Zaragoza. Here, when defendant
objected to the imposition of restitution, defendant was allowed to present an
argument during the sentencing hearing as to why the security officer's trial
testimony was insufficient to prove the amount of restitution damages. The
court allowed defendant to further argue that the state should have been
compelled to produce additional documentation. The court also allowed--and responded
affirmatively to--defendant's request to allow a payment schedule to fulfill
defendant's restitution obligations, and, before concluding the hearing, the
court asked defendant if he had any further arguments and defendant replied
that he had nothing further for the sentencing court.

In addition, and in contrast to the
defendant's unequivocal request for a hearing in Zaragoza, defendant in
this case only requested that the matter of restitution be left open for 30
days to allow the state to produce an additional document and for defendant
"to see the supporting documentation that's offered." On appeal,
defendant does not argue that the trial court erred in denying any request for
a separate hearing on restitution to be held at a different time. Instead,
defendant's argument on appeal is that "the statute requires that
defendant be allowed to at least be heard either at the time of sentencing or
at the time that the court decides restitution." Because defendant does
not argue that the trial court should have granted an additional separate
hearing or postpone sentencing, we do not consider either issue. See ORAP
5.45(1) ("No matter claimed as error will be considered on appeal unless
the claim of error was preserved in the lower court and is assigned as error in
the opening brief[.]").

3.That is not to say that
the state's method of presenting evidence regarding restitution was the
preferred method or best practice of establishing the amount of restitution.
Rather, as stated above, the trial court did not err in setting the amount of
restitution at $3,000.